What’s more, because the charges contemplated here relate to false denials of responsibility for Plame’s exposure, prosecuting perjury or false statements would be tantamount to punishing the leak. Thus, given the compelling showing of need and exhaustion, plus the sharply tilted balance between harm and news value, the special counsel may overcome the reporters’ qualified privilege, even if his only purpose—at least at this stage of his investigation—is to shore up perjury charges against leading suspects such as Libby
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Were the leak at issue in this case less harmful to national security or more vital to public debate, or had the special counsel failed to demonstrate the grand jury’s need for the reporters’ evidence, I might have supported the motion to quash. Because identifying appellants’ sources instead appears essential to remedying a serious breach of public trust, I join in affirming the district court’s orders compelling their testimony.This part of the first passage should at least give Libby's attorneys access to her job status "tantamount to punishing the leak" . And if Mr. Fitzgerald presented to the court that there was harm to national security, and it appears that was the partial basis for at least one Justice's ruling for compelling testimony, how can he now claim that it not relevant to the perjury charge?
The full context of the first paragraph helps, but still the conclusion is that Miller and Cooper's testimony should be compelled even if the ONLY PURPOSE is to shore up perjury charges.
Finally, while it is true that on the current record the special counsel's strongest charges are for perjury and false statements rather than security-related crimes, that fact does not alter the privilege analysis. Insofar as false testimony may have impaired the special counsel's identification of culprits, perjury in this context is itself a crime with national security implications. What's more, because the charges contemplated here relate to false denials of responsibility for Plame's exposure, prosecuting perjury or false statements would be [page 39] tantamount to punishing the leak. Thus, given the compelling showing of need and exhaustion, plus the sharply tilted balance between harm and news value, the special counsel may overcome the reporters' qualified privilege, even if his only purpose -- at least at this stage of his investigation -- is to shore up perjury charges against leading suspects such as Libby.As post 106 points out, it appears that not only was Fitzgerald too trusting of the CIA, Judge Tatel fell for the same representation - that the "leak" was at least somewhat harmful to national security. Indeed, the unredacted opinion carries the "leak was harmful" meme fairly strongly.
It wasn't until after this opinion was issued that 36 news organizations filed a brief arguing for a rehearing, en banc, arguing that testimony should not be compelled because Plame was not covert. That argument has not been addressed by a court.
And if Mr. Fitzgerald presented to the court that there was harm to national security, and it appears that was the partial basis for at least one Justice's ruling for compelling testimony, how can he now claim that it not relevant to the perjury charge?
It's relevant to the extent that it legitimizes an investigation into whodunnit. There would be deep ramifications for "the system" to reject false statements charges based on a realization that the underlying charge fails for other reasons.
In practice, such a rule would open the door for ALL perjurers to require the underlying case to be tried FIRST, to find out if the underlying charge fails for other reasons.
The root problem here is the original false report of wrong, which emanated from the CIA. Sort of like the Wilbanks case, the initial "false report" being kidnapping - but once the charge is out there, those who accept it as true, and go on to investigate further, HAVE to count on truthful testimony.
And I can see how Fitz (and quite a few others) might have been duped by the CIA. There is a systematic weakness, a reasonable set of assumptions that fed this comedy of serious errors. Think about why the CIA would refer a leak case. What could (and should) they know, and what could they not know? Why would another government bureaucracy bother to investigate the "referrer should know -this- part" of a criminal violation?
There are a few elements to the outing the agent crime, some of which the CIA would easily know, and others that the CIA would not easily know. The DoJ went to work on the parts that the CIA would NOT easily know. Who leaked it, and did that leaker "know the status of the agent"?
The DoJ made the mistake of thinking the CIA would not refer a case where the agent wasn't covert - that the CIA would not make what amounts to a "false report." But guess what? At that level, making false reports is not illegal.